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November 16, 2016
"Race, Place, and Capital Charging in Georgia"
The title of this post is the title of this new article authored by Sherod Thaxton, which seems especially timely because Georgia has an execution scheduled for this evening that seems likely to go forward and would result in Georgia having executed more condemned murderers so far this year than Texas. Here is the abstract:
The U.S. Supreme Court has identified three types of constitutionally impermissible errors in the administration of capital punishment: arbitrariness, discrimination, and disproportionality. In this essay, I describe an empirically-anchored analytical framework for defining, identifying, and measuring these concepts. I then illustrate the usefulness of the framework by examining prosecutors' death penalty charging decisions in Georgia over an eight-year period. The results strongly suggest that prosecutorial decision-making in Georgia continues to be plagued by the very errors that led the Court to invalidate Georgia's capital punishment system forty years ago.
November 16, 2016 at 08:09 AM | Permalink
Comments
Does every professor, wrongly, teach McCleskey?
Thaxton writes:
"So it is one thing for Justices on the U.S. Supreme Court to conclude that a defendant, like Warren McCleskey, did not present sufficiently strong statistical evidence to permit an inference of purposeful racial discrimination; however, when one discovers race-of-victim effects in some judicial circuits that are four times as strong, if not more, than other circuits, what else can one infer?"
SCOTUS, wrongly, found the "four times". Why? because they had no clue what an odds multiplier was.
It was by odds of 4 times, which, based upon another Baldus study, in Philadelphia, can mean a difference as small as 2-3%, not 4 times, which is a 300% difference - a huge mis-characterization of reality by SCOTUS.
Please review:
A) "The Math Behind Race, Crime and Sentencing Statistics"
By John Allen Paulos, Los Angeles Times, July 12, 1998
http://articles.latimes.com/1998/jul/12/opinion/op-2965
B) See “The Odds of Execution” within “How numbers are tricking you”, by Arnold Barnett, MIT Technology Review October, 1994
http://reocities.com/CapitolHill/4834/barnett.htm
Posted by: Dudley Sharp | Nov 17, 2016 12:12:41 PM
Since this post refers to capital cases, this article is somewhat germane:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2870569
"Listening to Victims, in Death Penalty and the Victims, United Nations Human Rights Office of the High Commissioner"
Abstract: Listening to and learning from victims has broadened our understanding of how their needs might be better met within the judicial process. Losing a loved one to severe violence tremendously complicates the struggle individuals face to regain balance and meaning in their lives. Capital prosecutions complicate that process even more. Victims who oppose capital punishment are often left out of the judicial process. Their stories reflect the imperative to create systems for more effective and meaningful ways to address violent crime while respecting victims' needs.
Posted by: Joe | Nov 21, 2016 11:33:38 AM
My article, "Race, Place, and Capital Charging in Georgia," describes the impact of the victim’s race on death penalty charging decisions in terms of its marginal effect, and not its odds-ratio (i.e., odds multiplier). By marginal effect, I mean the change in the predicted probability of a death notice depending on the race of the victim, all else held constant. So when I note that the race-of-victim effects are (at least) four-times stronger, I’m referring to the magnitude of the differences in the marginal effects across jurisdictions in Georgia. In statistics parlance, I’m referring to the risk ratio (i.e., ratio of probabilities) and not the odds multiplier (i.e., ratio of odds). This is evident from the passage that Mr. Sharp quotes from my article: “[H]owever, when one discovers race-of-victim effects in some judicial circuits that are four times as strong, if not more, than other circuits, what else can one infer?" My use of marginal effects is also underscored by my discussion of the variation in the effect of the victim’s race across jurisdictions in terms of actual probabilities (reported as percentages): “Figure 7 is a map of Georgia displaying the variability of the race-of-victim effect across the judicial circuits. The effect ranges from negative 6% to approximately 41%. This means that the likelihood of a white-victim case receiving a death notice can be six percentage points lower than the likelihood of similar black-victim case all of the way up to forty percentages points higher.”
It is also important to emphasize that the risk ratios I report refers to the difference in magnitude of the effect of the victim’s race depending on the jurisdiction. This is not the same quantity of interest emphasized in McCleskey v. Kemp (and described by Mr. Sharp). In that particular study, the U.S. Supreme Court focused its attention on the overall race-of-victim effect for, respectively, charging and sentencing decisions. The race-of-victim odds multiplier for death noticing was 3.1 (the 4.3 odds multiplier that Mr. Sharp reports pertains to death sentences, not death notices). I find that the overall odds multiplier for victim’s race is 2.4 for death notices in Georgia, which is based on the aggregation of all jurisdictions in Georgia. But this type of aggregation ignores the importance of location and assumes that death penalty charging dynamics are uniform across jurisdictions in Georgia. My study recognizes that the racial dynamics (specifically the race-of-victim dynamics) in capital charging vary across jurisdictions in Georgia and explicitly quantifies the magnitude of the variation.
I do agree with Mr. Sharp that the courts and legal scholars have often (but not always) misinterpreted odds multipliers when discussing the empirical findings presented McCleskey v. Kemp (and related work). Odds multipliers can exaggerate small differences in the relative risk of a defendant receiving a death notice depending on the victim’s race. But no such error of interpretation is present in “Race, Place, and Capital Charging in Georgia” because I report the more intuitive quantity of interest: a marginal effect representing the change in probability of a defendant receiving a death notice depending on the victim’s race. This marginal effect varies, drastically, across jurisdictions within Georgia, even though the decision-making process is ostensibly governed by the same death penalty statute. Under the Court’s prevailing death penalty jurisprudence, such stark differences should create a colorable claim of a constitutional violation under the Cruel and Unusual Punishment Clause of the Eighth Amendment (arbitrariness & disproportionality) and/or the Equal Protection Clause of the Fourteenth Amendment (discrimination).
Posted by: Sherod Thaxton | Dec 31, 2016 8:56:53 PM
